By Adam T. Kronfeld of Duff & Kronfeld, P.C. posted in Family Law on Wednesday, September 19, 2018.
Under Virginia law, generally, once a child achieves age eighteen, he or she is an emancipated adult, and neither parent any longer owes any duties to – nor holds any legal authority over – the child. The common exception is that where a child turns eighteen before high school graduation, child support continues until graduation. But what about educational expenses beyond high school? How are college tuition and other costs treated under the law?
The unfortunate answer is “not very kindly.”
Under Virginia law, neither parent can be obligated to pay for a child’s college expenses, whether for tuition, room and board, books, activity fees, or otherwise. In circumstances where the parties have already established recognized college savings accounts, such as 529 plans, the courts may order the parents to maintain those accounts for the benefit of the children, but cannot require further contribution to those accounts.
In addition to parents not being obligated to contribute financially to their children’s college education, a parent doing so could even be penalized in a divorce. Generally speaking, once the parties are separated or nearing a separation, one spouse unilaterally spending marital money for an improper purpose can be found by the Court to have “wasted” a marital asset. If such a finding is made, that spouse may have to find a way to reimburse the other spouse their appropriate share of the “wasted” asset. In a recent Court of Appeals case, Hvozdovic v. McGuire, the Husband spent $119,000 on the parties’ son’s college education from marital funds after separation, without the Wife’s consent. Under the circumstances in that case – which included the Husband’s ulterior motive of enhancing his relationship with his adult son – the Court found that the Husband’s unilateral spending was “waste” and the Court made him reimburse the Wife about $44,000. The Court of Appeals was careful to note that not every case of spending marital money on a child’s college education is necessarily waste; it is a fact-based, case-by-case decision to be made by the court in the divorce trial.
As a corollary to the fact that a parent has no obligation to support a child over the age of eighteen, it also follows that a parent voluntarily paying an adult child’s college expenses – or any other expenses, for that matter – receives no credit for the same in determining spousal support. The purpose of spousal support is to help provide for the support and maintenance of a financially disadvantaged spouse and no one else. Consequently, a recipient (or potential recipient) of spousal support who claims that part of a deficiency in his or her monthly budget is due to payment of a child’s college expenses can expect those expenses to be ignored by a court. Of course, the same is true of a payor claiming he or she cannot pay support because he or she “have to” help pay their child’s college costs.
But what about situations which the parents may want to agree to pay college expenses? Considerations for those circumstances will follow in an upcoming post.
If you have any questions or would like to discuss your legal matter with an attorney, please contact Duff & Kronfeld, P.C. at (703) 591-7475 for a complementary, 30-minute consultation.